Florida Senate - 2024                                     SB 446
       
       
        
       By Senator Simon
       
       
       
       
       
       3-00860-24                                             2024446__
    1                        A bill to be entitled                      
    2         An act relating to supported decisionmaking authority;
    3         amending s. 393.12, F.S.; requiring a circuit court to
    4         consider certain needs and abilities of a person with
    5         a developmental disability when determining whether to
    6         appoint a guardian advocate; providing requirements
    7         for a petition to appoint a guardian advocate for a
    8         person with a developmental disability and for a court
    9         order if the court finds that such person requires
   10         such appointment; amending s. 709.2201, F.S.;
   11         authorizing an agent acting for a principal to grant a
   12         supported decisionmaking agreement; creating s.
   13         709.2209, F.S.; defining the term “supported
   14         decisionmaking agreement”; prohibiting such agreement
   15         from acting as a durable power of attorney;
   16         authorizing specified authority to a supported
   17         decisionmaking agreement; providing that certain
   18         communications shall be recognized as a communication
   19         of the principal under certain circumstances; amending
   20         s. 744.3201, F.S.; requiring a petition to determine
   21         incapacity of a person to include specified
   22         information relating to the alleged incapacitated
   23         person’s use of assistance; amending s. 744.331, F.S.;
   24         providing requirements for an examining committee
   25         member when determining the alleged incapacitated
   26         person’s ability to exercise his or her rights;
   27         amending s. 744.464, F.S.; authorizing a suggestion of
   28         capacity to include certain capabilities of the ward;
   29         amending s. 1003.5716, F.S.; revising the requirements
   30         for a specified process relating to individual
   31         education plans for certain students to include
   32         supported decisionmaking agreements; providing an
   33         effective date.
   34          
   35  Be It Enacted by the Legislature of the State of Florida:
   36  
   37         Section 1. Paragraph (a) of subsection (2), paragraph (a)
   38  of subsection (3), and subsection (8) of section 393.12, Florida
   39  Statutes, are amended to read:
   40         393.12 Capacity; appointment of guardian advocate.—
   41         (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
   42         (a) A circuit court may appoint a guardian advocate,
   43  without an adjudication of incapacity, for a person with
   44  developmental disabilities, if the person lacks the
   45  decisionmaking ability to do some, but not all, of the
   46  decisionmaking tasks necessary to care for his or her person or
   47  property or if the person has voluntarily petitioned for the
   48  appointment of a guardian advocate. In determining whether to
   49  appoint a guardian advocate, the court shall consider the
   50  person’s unique needs and abilities, including, but not limited
   51  to, the person’s ability to independently exercise his or her
   52  rights with appropriate assistance, and may only delegate
   53  decisionmaking tasks that the person lacks the decisionmaking
   54  ability to exercise. Except as otherwise specified, the
   55  proceeding shall be governed by the Florida Rules of Probate
   56  Procedure.
   57         (3) PETITION.—
   58         (a) A petition to appoint a guardian advocate for a person
   59  with a developmental disability may be executed by an adult
   60  person who is a resident of this state. The petition must be
   61  verified and must:
   62         1. State the name, age, and present address of the
   63  petitioner and his or her relationship to the person with a
   64  developmental disability;
   65         2. State the name, age, county of residence, and present
   66  address of the person with a developmental disability;
   67         3. Allege that the petitioner believes that the person
   68  needs a guardian advocate and specify the factual information on
   69  which such belief is based;
   70         4. Specify the exact areas in which the person lacks the
   71  decisionmaking ability to make informed decisions about his or
   72  her care and treatment services or to meet the essential
   73  requirements for his or her physical health or safety;
   74         5. Specify the legal disabilities to which the person is
   75  subject; and
   76         6. Identify any other type of guardian advocacy or
   77  alternatives to guardian advocacy that the person has
   78  designated, is in currently, or has been in previously and the
   79  reasons why alternatives to guardian advocacy are insufficient
   80  to meet the needs of the person;
   81         7.State whether the person uses assistance to exercise his
   82  or her rights, including, but not limited to, supported
   83  decisionmaking, and if so, why the assistance is inappropriate
   84  or insufficient to allow the person to independently exercise
   85  the person’s rights; and
   86         8. State the name of the proposed guardian advocate, the
   87  relationship of that person to the person with a developmental
   88  disability; the relationship that the proposed guardian advocate
   89  had or has with a provider of health care services, residential
   90  services, or other services to the person with a developmental
   91  disability; and the reason why this person should be appointed.
   92  The petition must also state if a willing and qualified guardian
   93  advocate cannot be located.
   94         (8) COURT ORDER.—If the court finds the person with a
   95  developmental disability requires the appointment of a guardian
   96  advocate, the court shall enter a written order appointing the
   97  guardian advocate and containing the findings of facts and
   98  conclusions of law on which the court made its decision,
   99  including:
  100         (a) The nature and scope of the person’s lack of
  101  decisionmaking ability;
  102         (b) The exact areas in which the individual lacks
  103  decisionmaking ability to make informed decisions about care and
  104  treatment services or to meet the essential requirements for his
  105  or her physical health and safety;
  106         (c) The specific legal disabilities to which the person
  107  with a developmental disability is subject;
  108         (d)The identity of existing alternatives and a finding as
  109  to the validity or sufficiency of such alternative to alleviate
  110  the need for the appointment of a guardian advocate;
  111         (e)(d) The name of the person selected as guardian advocate
  112  and the reasons for the court’s selection; and
  113         (f)(e) The powers, duties, and responsibilities of the
  114  guardian advocate, including bonding of the guardian advocate,
  115  as provided in s. 744.351.
  116         Section 2. Paragraph (d) is added to subsection (2) of
  117  section 709.2201, Florida Statutes, to read:
  118         709.2201 Authority of agent.—
  119         (2) As a confirmation of the law in effect in this state
  120  when this part became effective, such authorization may include,
  121  without limitation, authority to:
  122         (d)If such authority is specifically limited, grant a
  123  supported decisionmaking agreement as defined in s. 709.2209(1).
  124         Section 3. Section 709.2209, Florida Statutes, is created
  125  to read:
  126         709.2209Supported decisionmaking agreements.—
  127         (1)For purposes of this section, “supported decisionmaking
  128  agreement” means an agreement in which the power of attorney
  129  grants an agent the authority to receive information and to
  130  communicate on behalf of the principal without granting the
  131  agent the authority to bind or act on behalf of the principal on
  132  any subject matter.
  133         (2)A supported decisionmaking agreement is not a durable
  134  power of attorney under s. 709.2104. Any language of durability
  135  in a supported decisionmaking agreement is of no effect.
  136         (3)A supported decisionmaking agreement may only include
  137  the authority to:
  138         (a)Obtain information on behalf of the principal,
  139  including, but not limited to, protected health information
  140  under the Health Insurance Portability and Accountability Act of
  141  1996, 42 U.S.C. s. 1320d, as amended; educational records under
  142  the Family Educational Rights and Privacy Act of 1974, 20 U.S.C.
  143  s. 1232g; or information protected under 42 U.S.C. s. 290dd-2 or
  144  42 C.F.R. part 2.
  145         (b)Assist the principal in communicating with third
  146  parties, including conveying the principal’s communications,
  147  decisions, and directions to third parties on behalf of the
  148  principal.
  149         (4)A communication made by the principal with the
  150  assistance of or through an agent under a supported
  151  decisionmaking agreement that is within the authority granted to
  152  the agent may be recognized as a communication of the principal.
  153         Section 4. Subsection (2) of section 744.3201, Florida
  154  Statutes, is amended to read:
  155         744.3201 Petition to determine incapacity.—
  156         (2) The petition must be verified and must:
  157         (a) State the name, age, and present address of the
  158  petitioner and his or her relationship to the alleged
  159  incapacitated person;
  160         (b) State the name, age, county of residence, and present
  161  address of the alleged incapacitated person;
  162         (c) Specify the primary language spoken by the alleged
  163  incapacitated person, if known;
  164         (d)State whether the alleged incapacitated person uses
  165  assistance to exercise his or her rights, including, but not
  166  limited to, supported decisionmaking, and if so, why the
  167  assistance is inappropriate or insufficient to allow the person
  168  to independently exercise the person’s rights;
  169         (e)(d) Allege that the petitioner believes the alleged
  170  incapacitated person to be incapacitated and specify the factual
  171  information on which such belief is based and the names and
  172  addresses of all persons known to the petitioner who have
  173  knowledge of such facts through personal observations;
  174         (f)(e) State the name and address of the alleged
  175  incapacitated person’s attending or family physician, if known;
  176         (g)(f) State which rights enumerated in s. 744.3215 the
  177  alleged incapacitated person is incapable of exercising, to the
  178  best of petitioner’s knowledge. If the petitioner has
  179  insufficient experience to make such judgments, the petition
  180  must so state; and
  181         (h)(g) State the names, relationships, and addresses of the
  182  next of kin of the alleged incapacitated person, so far as are
  183  known, specifying the dates of birth of any who are minors.
  184         Section 5. Paragraph (e) of subsection (3) of section
  185  744.331, Florida Statutes, is amended to read:
  186         744.331 Procedures to determine incapacity.—
  187         (3) EXAMINING COMMITTEE.—
  188         (e) Each member of the examining committee shall examine
  189  the person. Each examining committee member must determine the
  190  alleged incapacitated person’s ability to exercise those rights
  191  specified in s. 744.3215. An examining committee member may
  192  allow a person to assist in communicating with the alleged
  193  incapacitated person when requested by the court-appointed
  194  counsel for the alleged incapacitated person and shall identify
  195  the person who provided assistance and describe the nature and
  196  method of assistance provided in his or her report. In addition
  197  to the examination, each examining committee member must have
  198  access to, and may consider, previous examinations of the
  199  person, including, but not limited to, habilitation plans,
  200  school records, and psychological and psychosocial reports
  201  voluntarily offered for use by the alleged incapacitated person.
  202  Each member of the examining committee must file his or her
  203  report with the clerk of the court within 15 days after
  204  appointment.
  205         Section 6. Paragraph (a) of subsection (2) of section
  206  744.464, Florida Statutes, is amended to read:
  207         744.464 Restoration to capacity.—
  208         (2) SUGGESTION OF CAPACITY.—
  209         (a) Any interested person, including the ward, may file a
  210  suggestion of capacity. The suggestion of capacity must state
  211  that the ward is currently capable of exercising some or all of
  212  the rights which were removed, including the capability to
  213  independently exercise his or her rights with appropriate
  214  assistance.
  215         Section 7. Paragraph (d) of subsection (1) of section
  216  1003.5716, Florida Statutes, is amended to read:
  217         1003.5716 Transition to postsecondary education and career
  218  opportunities.—All students with disabilities who are 3 years of
  219  age to 21 years of age have the right to a free, appropriate
  220  public education. As used in this section, the term “IEP” means
  221  individual education plan.
  222         (1) To ensure quality planning for a successful transition
  223  of a student with a disability to postsecondary education and
  224  career opportunities, during the student’s seventh grade year or
  225  when the student attains the age of 12, whichever occurs first,
  226  an IEP team shall begin the process of, and develop an IEP for,
  227  identifying the need for transition services before the student
  228  with a disability enters high school or attains the age of 14
  229  years, whichever occurs first, in order for his or her
  230  postsecondary goals and career goals to be identified. The plan
  231  must be operational and in place to begin implementation on the
  232  first day of the student’s first year in high school. This
  233  process must include, but is not limited to:
  234         (d) At least 1 year before the student reaches the age of
  235  majority, provision of information and instruction to the
  236  student and his or her parent on self-determination and the
  237  legal rights and responsibilities regarding the educational
  238  decisions that transfer to the student upon attaining the age of
  239  18. The information must include the ways in which the student
  240  may provide informed consent to allow his or her parent to
  241  continue to participate in educational decisions, including:
  242         1. Informed consent to grant permission to access
  243  confidential records protected under the Family Educational
  244  Rights and Privacy Act (FERPA) as provided in s. 1002.22.
  245         2. Powers of attorney as provided in chapter 709.
  246         3. Guardian advocacy as provided in s. 393.12.
  247         4. Guardianship as provided in chapter 744.
  248         5.Supported decisionmaking agreements as provided in s.
  249  709.2209.
  250  
  251  The State Board of Education shall adopt rules to administer
  252  this paragraph.
  253         Section 8. This act shall take effect July 1, 2024.